The number of U.S. judicial opinions citing neuroscience more than doubled in the seven years from 2005 to 2012, according to an analysis in the Journal of Law and the Biosciences. As neurolaw — a segment of criminal justice concerned with neuroscience — enters the courtrooms of America at a remarkable pace, judges are still determining how, whether, and when to support brain science in the courtroom.

Emerging brain science may be able to provide alternatives to incarceration, such as neuroscience-based therapies and treatments, to help reduce the growing prison population in the United States and elsewhere. Courtesy, The Sentencing Project.

While appreciating the benefits and progress made in brain science, such skepticism was well-earned over several generations as once-accepted aspects of brain science were later debunked: Phrenology, eugenics, and frontal lobe lobotomies all were presented as accurate science in 20th century, with disastrous results in the courts. As Rakoff put it, “they’ve been burned before.”

He was particularly circumspect about applying brain science in individual cases, noting the high stakes involved for a defendant. However, he said that growing understanding of general neuroscience principles can shape public policy around crime. But to do so, neuroscientists must educate judges and the general public on both the merits and potential limitations of our current understanding of the brain.

False Memories

Eyewitness testimony can hold great weight in the courtroom. A victim or bystander of a crime seems like an excellent source of information, and a single witness is often enough to send a defendant to jail.

“Brain science illuminates the driving forces behind human behavior, criminal or otherwise, which is highly relevant to the court system.”

However, thanks to modern neuroscience, we now know that eyewitness testimony is relatively unreliable. Memory researchers have unveiled many factors affecting the accuracy of long-term memories. A victim of a night-time mugging may not be able to identify facial features because of low lighting, and stress negatively affects the ability to accurately recall details. Identifying faces from memory, especially faces that are a different race, has proved more difficult than originally thought.

Even someone who got a good look at an assailant can have their memory altered over time. Neuroscientists now understand that the act of recalling a memory reconsolidates it, effectively becoming a new memory. Over time, this reconsolidation can alter details, like a game of telephone. Even the most traumatic events are altered when recalling memories. In a study of New York City residents one year after 9/11, their memories of the event differed in 40 percent of the details.

Memory researchers now advise that even though eyewitness testimony is a valuable source of information, it is almost never perfectly accurate. By translating their work for the public, neuroscientists could change the landscape of the courtroom dramatically, simply by upending this commonly held notion about eyewitnesses.

The Future of Drug Policy

Although Rakoff remains skeptical of the value of neuroscience in dictating individual outcomes, he praised its potential role in setting and reforming public policy. Brain science illuminates the driving forces behind human behavior, criminal or otherwise, which is highly relevant to the court system.

Over the past several decades, the American prison population has grown by more than 500 percent, driven largely by drug arrests. Because policies such as mandatory minimums give judges little choice in whether to send drug users to prison, understanding drug addiction and its treatment is among the most pressing issues in U.S. criminal law today.

The modern science of addiction calls these policies into question. Taking drugs is associated with significant changes to a structure of the brain called the prefrontal cortex, which is responsible for impulse control and affects the ability to control cravings. While it’s not known whether addiction causes these brain changes or the changes just make addiction more likely, addressing addiction requires thoughtful evidence-based treatment.

Rakoff and prominent neuroscientists argue for a system that would replace punitive measures with rehabilitation programs firmly based in neuroscience. Researchers have treated addiction as abnormal brain function for several years now, and rehabilitative practices are improving. Treating addiction as a disease from which a person can recover leads to better health outcomes and recidivism rates.

Neuroscience can play an important role in defining the future of criminal justice. Modern brain science has the potential to alter our understanding of issues as diverse as the sentencing of minors, the effects of solitary confinement, lie detection, and even the nature of responsibility. As Rakoff explained, scientists have a responsibility to get involved and push forward good science to help improve these practices and to create a more effective and just body of law.

4 thoughts on “Neurolaw: Combining Neuroscience and Criminal Justice”

What is ironic is that all the issues relevant to neuroscience and the law are relevant the the natural science of BEHAVIOR and the law. Whenever behavior is shown to be a function of manipulable environmental variables, “Autonomous Man” becomes less believable. Skinner covered all the relevant issues (e.g., determinism, crime and punishment etc.) better than anyone has done since in Beyond Freedom and Dignity – certainly better than the twaddle that comes out of neuro”science.”

The “nightmare of determinism” was successfully avoided, as it should be. Free will is a key factor in establishing moral and legal responsibility. Free will is what we call it when we decide for ourselves what we will do, free of coercion or other undue influence.

Determinism asserts that the objects and forces of the physical universe interact in a perfectly reliable fashion. So reliable that if one had sufficient knowledge of everything currently going on in the universe and sufficient power to process that data, one could predict every future event with 100% accuracy.

But determinism itself is neither an object nor a force. It doesn’t cause anything. It describes how things work, but it is not itself a “thing” that does any work. Only the actual objects and the forces that make up the physical universe can be said to cause anything to happen.

The mental error of confusing a concept with an actual thing is called a “reification fallacy”. And it is by this fallacy that we end up with the determinism “versus” free will paradox. By this mental error, reliable cause and effect is turned into an “external force” that “controls” everything we do. But no such object or force exists.

We, on the other hand, exist in reality as physical objects, living organisms, and an intelligent species. As living organisms, we act purposefully to survive, thrive, and reproduce. As an intelligent species, we act deliberately by imagination, evaluation, and choosing. And, when we act upon our choices, we are forces of nature.

Reliable cause and effect is not an external force that deprives us of free will. Reliable cause and effect is in fact us, and the rest of the physical universe, just doing what we do.

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